The U.S. Department of Labor has proposed amending the regulatory definition of “spouse” under the Family and Medical Leave Act to expressly include individuals in same-sex marriages.

In a Notice of Proposed Rulemaking published on June 27, 2014, the DOL proposed the revision in light of the recent United States Supreme Court decision in United States v. Windsor, which found unconstitutional those provisions of the Defense of Marriage Act that prohibited federal recognition of same-sex marriages.

Under the FMLA and its accompanying regulations, the term “spouse” is currently defined as a husband or wife as recognized under the laws of the state in which the employee resides.  If  the proposed revision is adopted, the definition of spouse would instead look to the law of the jurisdiction in which the marriage was entered into and would expressly encompass same-sex married couples.  According to the DOL, moving from a “state of residence” rule to a “place of celebration” rule will “ensure that same-sex couples who have legally married will have consistent FMLA rights regardless of where they live.”  The DOL also suggests that the proposed rule will reduce the administrative burden on multi-state employers, who would no longer have to consider an employee’s state of residence and the laws of that state in determining the employee’s eligibility for FMLA leave.

Some of the other features of the DOL’s proposed rule revision include:

• The revised rule would encompass an employee in a same-sex marriage entered into abroad as long as the marriage is valid in the place it was entered into and could have been entered into in at least one state in the United States.
• The revised rule would encompass employees in a common law marriage as long as the common law marriage became valid in a state that recognizes such common law marriage.
• An employee in a legal same-sex marriage could take FMLA leave to care for his or her stepchild.  Under the current rule, an employee in a legal same-sex marriage can only take FMLA leave to care for his or her stepchild for whom the employee stands in loco parentis.
• Similarly, an employee could take FMLA to care for his stepparent who is the employee’s parent’s same-sex spouse, even if the stepparent never stood in loco parentis to the employee.

Comments to the NPRM must be received by the DOL by August 11, 2014.  The full text of the proposed rule and information on how to submit comments can be found at www.dol.gov/whd/fmla/nprm-spouse.